New York State Court of Claims

New York State Court of Claims

DELISO v. THE STATE OF NEW YORK, #2006-033-556, Claim No. None, Motion No. M-71327


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Cappiello Hofmann & Katz, P.C.By: Timothy F. Schweitzer, Esq.
Defendant’s attorney:
Betancourt, Van Hemmen, Greco & Kenyon
By: Virginia A. Harper, Esq. andRonald Betancourt, Esq.
Third-party defendant’s attorney:

Signature date:
June 12, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This is an Order to Show Cause by Angelo Deliso (hereinafter “movant”) for pre-action discovery pursuant to CPLR 3102
. The underlying allegation is a negligence action for injuries allegedly suffered by claimant while working as a construction worker on the Wantagh State Parkway Bridge Rehabilitation Project in Wantagh, New York. The accident occurred on January 21, 2005 on a barge at the above location.
During the investigation into the alleged negligence of defendant, movant’s counsel was made aware that the barge was a transitory condition and would be moved when the project is completed. Movant asks this Court for an order granting pre-action discovery to inspect the barge.
In addition, movant asks for a deposition of an eyewitness to the incident in order to preserve the testimony when the witness’ memory is closer in time to the incident.
In opposition, defendant argues that the condition that existed on the barge at the time of movant’s accident has likely changed. In addition, defendant alleges that since it does not control the work site that the first time it heard of this case was when movant filed its motion for a late claim. Defendant claims that it will be prejudiced if a deposition of an eyewitness is allowed prior to the defendant’s investigation.
Pre-action discovery is necessary when a condition is so transitory that it will likely cease to exist before an action can be brought and the case developed. In that regard, this Court grants movant the right to inspect the barge. Inspection shall take place within forty-five (45) days of the filing date of this Order provided that the barge has not been previously removed from the job site. Movant’s request for a deposition of the eyewitness is denied. Movant is faced with the same obstacle that all litigants are faced with, especially litigants who face delays based upon their own inaction.
Based upon the foregoing, movant’s Order to Show Cause for pre-action discovery is granted in part and denied in part.

June 12, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on movant’s Order to Show Cause: Order to Show Cause dated February 17, 2006 and filed February 23, 2006; Attorney’s Affirmation in Support of Order to Show Cause of Timothy F. Schweitzer, Esq. with annexed Exhibits 1-4 dated February 3, 2006 and filed February 23, 2006; Memorandum of Law of Timothy F. Schweitzer, Esq. received February 23, 2006; Affirmation of Virginia A. Harper, Esq. with annexed Exhibit A dated March 2, 2006 and filed March 3, 2006; Memorandum of Law in Opposition to Claimant’s Order to Show Cause of Ronald Betancourt, Esq. and Virginia A. Harper, Esq. received March 3, 2006; Reply Affirmation of Timothy F. Schweitzer, Esq. in Support of Order to Show Cause dated March 7, 2006 and filed March 8, 2006; Claimant’s Affidavit of Angelo Deliso sworn to March 6, 2006 and filed March 8, 2006.
[2].Movant has also filed a motion for permission to file a late claim M-70876, which is currently before this Court and being decided simultaneously.